I think you want the legal price to be somewhat below what the illegal price would have been. That should be adequate to get rid of the illegal market.

The thing that hasn't been mentioned here is the necessity for enforcement. You essentially have what's now a tax evasion market. If you have a high tax and don't enforce that, then you're going to have entrepreneurs come in and sell untaxed cannabis as they sell untaxed tobacco. If you're going to have rules, you need to enforce them. It seems to me that ought to be part of the planning for this policy. The prices should be lower than illicit prices, but not so low as to encourage heavy substance use.

You know, on our fourth day of hearings, it's quite apparent that one of the major focuses of the testimony and the attention of committee members has been the impact of cannabis and cannabis legalization on young people, on youth. We've heard that Canadian youth are among the highest users of cannabis in the world, perhaps the second highest. We've heard about the impact on their health and their career prospects and the impact of legalization and criminalization on them. We've heard about brain development. We've heard that they apparently suffer from holding myths and misinformation about cannabis. We've heard advice from people about how to effectively talk to young people about cannabis. We've heard different thoughts about their access to cannabis and whether they do or don't have easier access to cannabis than liquor. We've heard about their attitudes towards cannabis, yet we haven't heard from a single young person at this committee.

Millions of Canadians use cannabis and have acknowledged it. They use it today, have used it, and will continue to use it. The parliamentary budget officer has estimated that somewhere between five million and seven million Canadians will use cannabis once this legislation comes into force, and of course, millions of Canadians, I think, voted very clearly last election for a legalized approach to cannabis, yet we haven't heard from a single, ordinary Canadian at this committee.

We have large, established producers of cannabis in this country right now that have been responsible, for I think a decade, for producing cannabis for the medicinal market. Dispensaries across this country, both in Ontario and British Columbia, and maybe in other provinces, have been very actively serving the market, mainly while politicians and police forces have quietly ignored them. We haven't heard from a single producer of cannabis or the dispensaries about their experience over a decade.

Finally, this legislation, we've heard, also seems, by design, to be excluding edibles and concentrates and non-smokable cannabis products, despite the health concerns and despite the obvious contradiction that the very purpose of this bill is to bring products out of the illicit market, to get rid of organized crime, and to regulate these products for the health and safety of Canadians, yet we haven't heard from a single producer of those products.

I think these are very important stakeholder groups, and I believe that it's important to hear from them for the committee's full consideration of the most comprehensive evidence on this legislation. Therefore, colleagues, I wish to serve notice that I am going to be moving the following motion, to be debated at some convenient point later in the day, because I want to give my colleagues a chance to think about it. The motion will read as follows:

“That pursuant to Standing Order 108(2), this Committee meet for an additional two days for the purpose of the consideration of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, and that the chair be empowered to coordinate the witnesses, to a minimum of 32 witnesses (eight per stakeholder group), the resources, and scheduling necessary to complete this task in accordance with the following guidelines: (1) Witnesses are to represent the following stakeholder groups in four two-hour panel blocks per day: (i) existing Canadian licensed producers and dispensaries; (ii) producers of edible cannabis products and other non-smokable forms of cannabis; (iii) ordinary Canadians who made a written submission to this committee regarding Bill C-45; (iv) young Canadians, 15 to 24 years; (2) That witnesses for each panel block be allotted as follows: two Liberal, one Conservative, one NDP; (3) That witnesses be directed to prepare oral remarks for 10 minutes in length, and that the witnesses be invited to submit written statements prior to appearing; (4) That the meetings be held prior to September 30, 2017.”

Colleagues, to conclude, the purpose of this is not to hold up these hearings. I'm mindful of the government's timeline. It is September 14. I believe that we are meeting next week to hear from ministers. I want to give the clerk and the chair and the parties time to put their witnesses in, but I think extending these hearings for another week and a half to hear from these important groups would be very important.

I'm going to conclude by saying that I've heard from no one but 50-year-olds and 60-year-olds about how to talk to young people. I think it's time we heard from young people about their thoughts on this bill.

I just have a thought on that. By the end of tomorrow, we'll have had, I think, 96 witnesses, and everybody's had a chance to submit witness lists. I'm not trying to downplay your thoughts on this, but I just want to make it clear that we will have had 96 witnesses as of tomorrow night, and we all had a chance to submit our lists at the opening. I believe that the first chance you'll have to move that is on Tuesday, so we'll look forward to your moving it.

Actually, Mr. Chair, I'm not going to get into debate now because I'm just serving notice, but I believe I can move this motion at any time. However, I don't want to interfere with the witnesses' testimony or with colleagues. I want to give my colleagues a chance to think about this. I will say, though, that none of the categories that I mentioned were categories that were identified by the committee to hear witnesses from. I believe that none of the 96 witnesses will actually hear from these groups, and they certainly aren't categories that we were invited to submit witnesses on.

Yes, further to this motion, I wasn't involved in the actual submission of the witnesses, so I apologize, but one thing that really concerns me is that all of the provinces that were invited to come don't want to come. We haven't heard from any of them, and many of them have not fully developed their plans. I would think that we would want to find out from them what's missing in the legislation. I'm incredibly concerned about that. I wouldn't mind adding that to the list of things that Mr. Davies wants.

The other thing is that although I see you have a workplace safety panel, you don't really have any of the companies that might be in a dangerous industry and want to implement some things. That group was also on my list of people I might want to hear from, as well as other countries. I used to visit Amsterdam and, believe me, there's a lot of pot being smoked there. I'd be interested to hear what they've done and perhaps something like that.

I'd just like to say something very quickly. I've done qualitative research where I have interviewed individuals, as has my Ph.D. student, Rielle Capler, across Canada in terms of their use of medical cannabis and their access experiences. I know it may not be 100% related, but we do believe that many people who use non-medical cannabis are actually using it for medical purposes. In talking to those Canadians, number one, they want to bring cannabis use out of the shadows and be able to talk about it with informed, non-judgmental health professionals. They're open to education about cannabis risks as well as benefits. They want reasonable access to cannabis within their communities, as well as through their health professionals. They want choice in cannabis in terms of the strains, the products, the mode of administration, and the access points. They want their experiences related to cannabis and their beliefs to be respected, and they all recognize that stigma associated with cannabis use is incredibly damaging to open conversations about their substance use.

I very much want to thank the panellists today. We've had some excellent panellists all the way through this, but you've brought a lot of new information and perspectives to us. We appreciate all the different visions, ideas, and proposals that you've brought to the table, and they will all be considered. Again, I want to thank you all very much for participating.

Committee members, I want to tell you that I've just been notified that our colleague, Arnold Chan, passed away. I just wanted you to know that. He suffered for quite a while, and he passed away last night.

As we ended our last session, we learned that our colleague, Mr. Arnold Chan, has passed away. We're going to take just a moment in consideration and remembrance of Arnold. He put up a long fight and passed away last night. Arnold never stopped. He worked right until the last minute. He never slowed down. He was always present. He put up a good fight.

[A moment of silence observed]

Here we are on meeting number 67. We're studying Bill C-45. We welcome our guests and our panellists. We're pleased to have you. I think we're somewhere near the 80th panellist we've had so far. They've just been incredible panellists. They have brought great knowledge, background, and experience to us.

Responsibility for labour matters in Canada, including workplace safety, is shared between the federal, provincial, and territorial governments. For more than 100 years now, the labour program has been protecting the rights and well-being of both workers and employers in federally regulated sectors, which represent approximately 8% of Canadian workers. This includes creating and maintaining safe and healthy workplaces.

As part of its mandate, the labour program is equally responsible for the administration and enforcement of the Non-smokers' Health Act.

Enacted in 1989, the purpose of the Non-smokers’ Health Act and the non-smokers' health regulations is to protect non-smokers from second-hand smoke in federally regulated workplaces, including in the federal private sector, federal crown corporations, designated federal agencies, the Royal Canadian Mounted Police, the federal public service, and Parliament, as well as on certain modes of transportation, such as ships, trains, and aircraft.

The administration of the Non-smokers’ Health Act is the joint responsibility of the Minister of Employment, Workforce Development and Labour and the Minister of Transport. The former is responsible for the act's application to federally regulated workplaces, and the latter for its application to common federally regulated transportation carriers.

The Minister of Employment, Workforce Development and Labour is solely responsible for designating inspectors to ensure compliance with the act. Fines for offences under the Non-smokers’ Health Act range from $1,000 to $10,000 for employers, and $50 to $1,000 for individuals.

Since 2007, over the past 10 years, there have been a total of 39 complaints under the Non-smokers’ Health Act, with an average of less than two per year in the past five years. This represents 1% of all of the health and safety complaints under just one part of the Canada Labour Code. There are very few complaints under this act.

To date, no prosecution has been filed under the Non-smokers' Health Act.

Since the Non-smokers' Health Act and the non-smokers' health regulations were introduced in 1989, public views with regard to smoking and second-hand smoke have greatly evolved.

In 2007, in light of scientific evidence on the danger of second-hand smoke, the non-smokers' health regulations were amended to eliminate provisions allowing for the designation of smoking rooms and areas in federally regulated workplaces. Since then, all persons, including employees and members of the public, have been prohibited from smoking in any federally regulated workplace and on certain modes of transportation, except in highly restricted smoking areas such as living accommodations or motor vehicles to which only one person has access during a shift.

The proposed tobacco and vaping products act, Bill S-5, would amend the Non-smokers' Health Act to add a prohibition against the vaping of tobacco in federally regulated workplaces and on certain modes of transportation. In addition, the task force on cannabis legalization and regulation recommended that federal, provincial, and territorial jurisdictions extend the current restrictions in place for smoking tobacco to the smoking of cannabis. As a result, amendments to the Non-smokers' Health Act are correspondingly being proposed through Bill C-45.

Bill C-45 proposes to amend the definition of smoke under the Non-smokers' Health Act to include cannabis. Provincial and territorial governments would be responsible for deciding whether to restrict the smoking and vaping of tobacco and cannabis to other public spaces. Should both these bills be approved by Parliament, the smoking and vaping of tobacco or cannabis would be regulated under the Non-smokers' Health Act in all federally regulated workplaces and on certain modes of transportation such as trains, planes, and boats where they cross provincial or international boundaries.

The changes we are proposing would assist in the protection of employees' health and safety at work under federal jurisdiction purview.

In a moment, I am going to take you to five recommended changes to the legislation. I have advised and represented employers and employer associations on this issue for many years and have written a book on the subject of alcohol and drugs in the workplace. I think these changes are essential if in fact recreational marijuana is to be legalized on July 1, 2018, as the bill proposes. Essentially, at the present time, there is no actual or proposed legislative framework that will be necessary to prevent this amendment from resulting in injury, accident, and death.

I will give a bit of background. I filed this in the brief, and the footnotes are available for the facts I'll provide you with.

In Canada, in 2015, the most recent year for which numbers are available, there were more than 232,000 lost-time accidents with 852 fatalities. There are approximately just under 3,000 motor vehicle fatalities every year in Canada. What we know from the Colorado experience is that, at least in the first full year after recreational cannabis was legalized, the number of motor vehicle fatalities, including transportation workers, increased by 225%. It more than doubled. Unless there is a rigorous legislative framework added, which is not yet proposed in the legislation, tragedy will be the result of this amendment allowing recreational marijuana to be legal in Canada.

The other statistics that employers are concerned about are as follows. Ninety-three per cent of businesses deal currently with substance abuse in some form on the part of their workers. This is a serious and important issue. More than 38% of workers' compensation claims are related to alcohol or drug abuse. The risk of a worker having an injury—again, the footnotes provide the references for the authority—is 2.7 times higher if they're involved in alcohol or substance abuse. The presumption of my submission is that the legalization of recreational marijuana will not only increase social acceptance and use, it will also exacerbate what my clients are seeing already, and that is an increased use with the view that legalization is around the corner.

The courts, in fact the chief justice when I was arguing the Irving Pulp & Paper case, suggested to me and other counsel in that random alcohol testing case that the legislature and Parliament is the better place to establish a comprehensive framework than to deal with this case by case, litigated in the courts and before arbitrators. Let me provide you—and, again, I hope that the brief has been provided to members of the committee—with the five recommendations in our submission that we would ask you to consider. They are essential to making sure that workplaces, workers, and the public affected by workers are safe.

First, the Canada Labour Code obviously deals only with a limited number of workers, about 8% or 9%, but there is a duty that exists in every other provincial statute, and that is a duty to protect worker health and safety. Workers also have duties, but the first recommendation is to acknowledge the reality that exists today and will be exacerbated by the legalization of marijuana. There is no current prohibition against a worker coming to work under the influence of cannabis or another drug, so the first requested recommendation is to prohibit workers from coming to work under the influence of cannabis or other drugs, unless they have medical authorization, and thereafter with consultation by the employer. That's a common-sense suggestion that we think should be considered.

Second, safety sensitive positions are discussed and debated without a legal definition. A safety sensitive job is obviously a pilot who takes us in the skies and has to be sober, a truck driver driving on an international or interprovincial trucking route, which is therefore federally regulated, or perhaps a provincially regulated tower crane operator. A safety sensitive position has yet to be defined under the Canada Labour Code. It needs to be, because things flow from that. Greater scrutiny and greater regulatory oversight need to be applied to safety sensitive positions, so our second recommendation is a definition for the term “safety sensitive position”.

Third, there needs to be a positive duty, we submit, for workers, supervisors, managers, who have a lawful prescription for medical marijuana to deal with a medical condition, or other drugs, to report that to the employer if they fall within the safety sensitive positions. There needs to be a connection there for disclosure, transparency, and later I'll make the point, protection of those workers to make sure they're not unfairly discriminated against.

Fourth, and this might be the most controversial of what I'm going to recommend, is the idea of testing for workers, randomly, for cannabis and other drugs if they occupy a safety sensitive position. The law, as you may know, has been set not by Parliament's leadership but by the courts reactively in case-by-case analyses.

The most recent decision on alcohol and drug testing is the Irving Pulp & Paper case. I was involved for an intervenor for that file. That's where the chief justice made the comment, “Mr. Keith, wouldn't it be better if the legislature took leadership in this issue to set a legislative framework as opposed to reacting case by case?” I couldn't disagree with the now former chief justice. But they went on to hold that random alcohol testing, where there's a clear legal Criminal Code threshold for impairment was not permitted in a dangerous pulp and paper place down in New Brunswick that was three blocks from a public school, because there weren't enough cases of people causing accidents when they were drunk. That essentially is the employer's view of the ruling, in Irving Pulp & Paper. It's troubling.

However, Irving Pulp & Paper says you can test if somebody does have an accident, post-incident, or if the employer determines that they are impaired at work. Why do you have to wait? Why can't you, as we do with RIDE programs around holiday season, have a deterrent and detection process of random testing in workplaces? The suggestion is for only safety sensitive positions, so there's not an over-inclusive net being cast.

Last, to complement this and the reporting obligation, we're recommending that the Canada Labour Code be amended to require workers to report if they're in fact taking drugs lawfully. This is an accommodation provision. Some might argue that there is implied case law about the duty to accommodate, and that's true, there is.

I think clarity is part of a comprehensive legislative framework to give employers and unions the legal obligation to accommodate workers who declare that they have a dependency or an addiction problem and they also fit within the safety sensitive regime. If the employee self-declares they have a problem, they're protected. They have job security, but they'll be assisted in hopefully a constructive rehabilitation program.

I think the requirement, as in Elk Valley Coal, the Supreme Court decision dealing with the duty to accommodate, should be if you in fact self-disclose before you cause the accident, because after that, there is accountability that the employer needs to be able to invoke for the worker.

To wrap up, hopefully these five recommendations will be looked at as part of a more comprehensive workplace safety legislative framework that will be fair to workers, protect workers from themselves, from other workers, and reduce the legal risks that employers are unfairly given when in fact they're blamed for not preventing a worker for coming to work sober and safe.

Clearly this legislation is controversial, to legalize recreational marijuana. I'm not commenting on that, but given that it's a very complex social experiment, assuming the government goes ahead with it, then the workplace safety issues and the recommendations we propose hopefully can be well received.

Mr. Chairman and committee members, thank you for having me here today.

I'm going to approach the panel topic of workplace safety from a different perspective, from the employee perspective, and specifically from the perspective of a specific group of employees, those being the thousands of workers across the country who currently work within the illicit cannabis industry.

It is estimated that over 13,000 individuals in British Columbia alone participate and work in the illicit cannabis industry. This represents an estimated wage amount of over $600 million. These are obviously estimates only. We don't have reliable statistics, but I think it's safe to say that across the country we're talking about tens of thousands of workers involved in cultivation, processing, or sales of illicit cannabis. The safety of these workers is threatened in a number of ways. In the retail sector, dispensary workers face a threat to their personal safety through the risk of robbery. Dispensaries are a ripe target for thieves due to cash on hand and due to the fact that thieves know that there's a good chance the robbery won't even get reported to the police. There may be environmental risks associated with working in an unregulated grow op or lab, and of course, the personal liberty of these workers is threatened by the risk of criminal prosecution.

I'm here to suggest to you today that the risks to these workers can be mitigated while simultaneously the objectives of legalization are advanced as these workers are provided a meaningful opportunity to participate within the legal market. This can be done by codifying within the bill and the regulations to the bill a tolerance for applicants with certain prior illicit market participation.

Subclause 62(7) of Bill C-45 provides that the minister may refuse to issue a production licence if the applicant has contravened the Controlled Drugs and Substances Act, the CDSA, in the past 10 years. That, in and of itself, excludes anyone who has been convicted of producing, trafficking, or even possessing cannabis in the last decade. The bill also provides that additional grounds for refusal may be prescribed by regulation.

We don't yet know what those regulations will look like, but we can look to the current access to cannabis for medical purposes regulations, the ACMPR, for a sense of this. In section 36 of the ACMPR, not only is the minister required to refuse to issue a production licence where the CDSA has been contravened in the past 10 years, but the minister is also required to refuse to issue a licence where law enforcement has provided information that raises reasonable grounds to believe that the applicant has been involved in the diversion of a controlled substance to an illicit market. The use of the words “reasonable grounds” here is important because it means that a conviction is not required. Charges are not even required. A mere reasonable suspicion is sufficient to result in the refusal of your application.

In addition, the ACMPR provides that all directors and officers of a licensed producer as well as certain key employees must be security cleared. Clause 67 of Bill C-45 also refers to security clearances, so it appears that this concept is being brought forward into the cannabis act, and again, under section 112 of the ACMPR, mere reasonable grounds to suspect that the applicant has been involved in the diversion of a controlled substance to the illicit market is a factor to be taken into account by the minister in deciding whether to grant a security clearance.

Under the ACMPR clearly we have a framework that essentially denies prior illicit cannabis market participants from obtaining a licence to produce medical cannabis, and also precludes them from holding many key positions with a licensed producer. This also creates a chilling effect on licensed producers with regard to hiring those with prior cannabis convictions, and it appears that we are heading in the same direction with Bill C-45.

This can be contrasted with the approach that's being taken in the United States. Of the eight states in the U.S. that licensed the production of recreational cannabis, seven have legislation that contains what I would refer to as amnesty provisions regarding prior cannabis convictions. Massachusetts, Nevada, and Colorado deny licences to those with a prior felony conviction, but they expressly exclude certain marijuana offences from that rule. Oregon, Maine, and Washington exclude certain marijuana convictions completely from the consideration of whether a licence should be granted. The draft regulations in California are the most inclusive. They provide that a prior conviction for the possession, sale, manufacture, or cultivation of a controlled substance, not involving minors, shall not form the sole ground for denial of a licence application. At least 11 states that have legalized medical cannabis also have some form of amnesty provisions in their legislation.

What I submit to you is that this is the direction we need to take in Canada as well. We need to consider and debate the parameters of acceptable prior illicit market participation. Many of these individuals would embrace the opportunity to operate legally. They would comply with regulations. Granted, some would choose to continue to operate outside of the law, so as not to be burdened by government regulation, and so be it. They would be dealt with on the offence and enforcement side of the equation, but there should be an opportunity to comply and participate.

At the very least, mere possession offences should not inhibit legal market participation, but what I'm suggesting is that we should go further than that because the cannabis entrepreneurs that I'm referring to are producing and selling cannabis products, so they would still be excluded. We need a more nuanced approach to the issue of licensing and who should be prohibited from obtaining a licence. For example, we can exclude those convicted of offences that involve young persons. We can exclude those with established connections to organized crime. We can exclude those convicted of offences that involved guns, violence, or controlled substances other than cannabis. We can build reasonable parameters that exclude those who are likely to be a threat to public health and safety, while also providing an opportunity for those who would not be.

I am a business lawyer. I have advised the medical cannabis industry since it was privatized three and a half years ago with the MMPR. I have seen the shortcomings of this system, but I've also seen the potential of this industry. Current licence producers are not averse to an inclusive industry. What they want is for everybody to be on a level playing field and to be subject to the same set of rules. I'm certainly not suggesting this from the perspective of being a cannabis activist and I'm not suggesting that illicit market participants have somehow earned the right to participate as a reward for their civil disobedience. I'm suggesting it because I believe it's the only way legalization is really going to work. The stated objectives of the bill include the reduction of the illicit market and it attempts to do so by imposing criminal sanctions on those operating outside of the legal framework, but this, in and of itself, will not work. We know this because it hasn't worked. Those who are excluded will continue to operate outside of the law. A better approach would be to design a framework for legalization which permits the inclusion of prior illicit market participants. This will enhance the public health and safety objective by subjecting those individuals to government oversight and regulation. It will increase tax revenues, as these individuals report and pay tax on their income. It will allow the legal industry to benefit from the breadth of knowledge that is possessed by these individuals and it will protect these individuals, by allowing them to work in a safe, regulated environment, free from the risk of criminal sanctions. If we fail to create an inclusive cannabis industry, the black market will thrive, and if it thrives, cannabis will continue to be easily accessible to minors, the public health and safety objective of restricting access to unregulated cannabis products will be compromised, and we will continue to place an unnecessary burden on the criminal justice system.

I would also add that a meaningful opportunity to transition into the legal market involves having regulations which are not so onerous that they effectively exclude small operators. The task force on cannabis legalization and regulation, in fact, recommended that the government encourage market diversity by creating a space for smaller producers. Under the ACMPR, what I am seeing is that the cost of compliance, in particular relating to security requirements, is a real barrier to small-scale production, and a meaningful opportunity to transition also requires expanding the scope of cannabis products to include edibles and other derivative products. This is what the market wants and demands and it will be required in order to transition the existing producers of these derivative products into the legal market.

Mr. Keith, you said there's no legislative framework to prevent injury and accidental death. I'm sure you're aware Bill C-46, whose study commences next week, deals extensively with impaired driving offences and provides new tools for detecting and testing. Is that not part of the legislative framework you're looking for?